Some types of medical malpractice are obvious to patients from the start. If you wake up from a surgery and your arm is numb and tingling and you can’t move your hand, you know there’s a problem.
In other situations, though, the problem may be hidden. I’m not referencing a surgeon, doctor, or nurse hiding a complication or error, although that sometimes happens. Rather, I’m talking about a serious mistake that no one knows about for months or even years.
Here at Painter Law Firm, we worked on numerous cases involving this type of situation.
One client had a gallbladder surgery at a hospital in northwest Houston and was discharged home. The patient’s primary care provider ordered home health nursing and wound care. The patient also was being followed by a surgeon for post-operative care. The home health nurse had little to no experience in wound care and tightly packed the patient’s wound with gauze, without notifying the surgeon.
This type of gauze wasn’t designed to be used for packing, and over a few days before the surgeon saw the patient the gauze was covered with new tissue. The wound healed and closed. The patient was fine for two years, until there were sudden symptoms including fever, redness, and pain at the surgical site.
It’s at this point that this patient’s story is similar to another client. This person had bariatric surgery at a suburban Houston hospital. The surgery went well, and the patient had no issues for two years.
Then one morning, the patient woke up with a low-grade fever and a slight pain on the left side of her abdomen. Two days later, the fever spiked over 100 and the abdominal pain was unbearable. The patient sought medical treatment and had an abdominal CT scan. The radiologist found a two-inch object that was surrounded by a pocket of fluid.
In both cases, the patients were taken back to the operating room for surgery. In both cases, the surgeons found a foreign object at the surgical site. In both cases, the foreign object caused a slow, smoldering infection that took two years to advance into sepsis.
For the first patient, the surgeon pulled out a large piece of gauze. The foreign object culprit for the second patient was a piece of plastic. Neither of them should’ve been left in a patient’s abdomen.
In other cases that we’ve recently handled, the operating room team left surgical towels in patient abdomens after open surgeries. Fortunately for those patients, these unintended retained surgical items were identified and removed within weeks in one case and two months in another case.
Leaving any unintended foreign or surgical item in the patient’s body is a multidisciplinary problem that includes surgeons, operating room nurses, and surgical techs. The standard of care requires health care personnel in each of these areas to keep track of items used in the operative field and make sure everything is removed at the end of the procedure.
This is such an important task that the standard of care requires a registered nurse to be assigned and dedicated to keeping count of surgical items. This individual is called the circulating nurse. The registered nurse circulator is positioned outside the sterile field and maintains a live record or count of items used during the surgery and items removed at the conclusion of the surgery.
If there’s a discrepancy in the final count, the standard of care requires performing an x-ray scan of the operative area to look for retained items.
Of course, there are limitations to what an x-ray scan will pick up. Metal sharp items, for example, would easily show up. Other items that lack radiopaque markers, such as surgical towels, won’t show up. That’s why many operating room experts believe that the standard of care requires hospitals to avoid having non-radiopaque surgical towels in the operating room under any circumstance. In addition, any surgeon bringing a non-routine countable item into the operative field should speak up to make sure the item is tracked.
The goal, of course, is for the multidisciplinary operating room team to get through a successful surgery without causing harm to the patient.
From a legal perspective, there are some additional interesting issues concerning timing. The general medical malpractice statute of limitations for Texas medical malpractice cases is two years. In some situations where there is a retain surgical item, though, the patient has no symptoms whatsoever that would suggest a problem until after the two years elapsed.
In such a case, a tolling exception to the statue limitations, called the discovery rule, may apply. Be forewarned, though, the Texas courts are rather strict on applying the discovery rule. The focus is on when a reasonable person would have known or should have known that there was cause to exercise diligence in investigating new signs and symptoms. As soon as that date is identified, the court will stop any potential tolling under the discovery rule.
In other words, there is no time to waste. If you’ve had a surgery and experience redness, pain, or other symptoms around the surgical site, the time to get it checked out is immediately. Then, if you want to investigate the possibility of a medical malpractice claim, promptly contact a skilled, top-rated Houston, Texas medical malpractice lawyer.
